Opinion
7-12-1951
In re LINGENFELTER'S ESTATE. Civ. 7896.
Hewitt & McBride, Yuba City, Brobeck, Phleger & Harrison, San Francisco, for appellant. Ray Manwell, Robt. W. Steel, Marysville, for respondent.
July 12, 1951.
As Modified on Denial of Rehearing Aug. 10, 1951.
Hearing Granted Sept. 7, 1951. *
Hewitt & McBride, Yuba City, Brobeck, Phleger & Harrison, San Francisco, for appellant.
Ray Manwell, Robt. W. Steel, Marysville, for respondent.
VAN DYKE, Justice.
Appellant Madge Tucker, having proposed for probate the purported will of Vivian Lingenfelter, deceased, the respondent, Lenore DeArmond, contested the probate thereof. The contest was upon the grounds of incompetency, and of undue influence alleged to have been exercised by appellants. Trial of the issues posed by the contest was had to a jury which returned a verdict in favor of respondent as to both grounds of contest. From the judgment thereafter entered denying probate of the proposed will and from the order made denying the motion of the proponents for judgment in their favor notwithstanding the verdict the proponents have appealed.
The husband of testatrix, Homer Lingenfelter, now deceased, was an attorney at law and Mr. Arthur Powell was his law partner. They practice in Marysville. The Lingenfelters had resided there for a long time. Mr. Powell was called by both parties, first by proponent upon the preliminary proof, and then by contestant in support of her contest. As the contestant's witness he testified fully concerning the execution of the will in his office. At that time Homer Lingenfelter was seriously ill and in the hospital. In the forenoon of June 23, 1949, testatrix, accompanied by Madge Tucker, a sister of Homer Lingenfelter, appeared together at the office of the partnership. Mr. Powell was out at the moment, but came in as the women were sitting in the reception room. Testatrix went into Mr. Powell's office with him. Appellant remained in the reception room. After some preliminary talk concerning the condition of Homer Lingenfelter, testatrix handed Powell an instrument in her handwriting and asked him if it was a good will legally. They read the document together and discussed its provisions. There were bequests to a number of friends and acquaintances and as these were read Mrs. Lingenfelter gave brief explanations as to why she had made these people beneficiaries. The document contained a provision for the care of a pet cat and she explained that she wanted the animal cared for, and since he was 'mean' she thought such care would have to be paid for in order to obtain it. The residuary clause gave the residue of the estate to Madge Tucker and her husband, E. F. Tucker. No provision was made for Homer Lingenfelter and this feature was discussed, testatrix explaining that her husband was very ill, that she 'didn't expect him to make it,' and that in any event she had very little property of her own. Thereupon the two entered into a discussion of her property and of her husband's property. Powell asked about her separate property and she stated that she had received nothing from her mother's estate, whereupon Powell stated that she could also will away half of the community property of herself and of her husband. He asked about the marital home and was told that it was held in joint tenancy. Powell said evidently her husband had explained that to her because 'she understood if anything happened to one first the other would get it.' She told him that she had no bank account of her own and they talked about the insurance in force on the life of Homer. She stated she had a joint bank account with Homer for household purposes. Further, in connection with the omission to mention her husband in the will, Powell said that the two of them had 'written poor Homer off', explaining that since January of that year Homer's physician had told the witness that he was in bad condition with practically no heart reserve left and would go any minute. He had had several attacks during one of which, three or four weeks before, a neighbor, Mrs. Dimond, had given him a 'hypo' just before he 'passed out', and two weeks before he had gone to the hospital in a coma; though he managed to come out of that he had another attack later and had gone to the hospital the day before the will was made. Homer died the day after the will was made.
As to the residuary clause in favor of appellants testatrix gave her reasons for thus favoring them, saying that while they were only in-laws, yet they had helped her husband and her when help was needed most and had done more for her than her own family ever had. Testatrix, after the holographic document had been examined and discussed, asked Powell to have it typed as an attested will. She directed that proponent be made executrix, and Powell dictated a formal will, using the handwritten document in the way of a memorandum, together with notes he had taken while talking with testatrix. The formal will was then prepared and while this was being done testatrix and Madge Tucker left the law offices and walked about in the town, returning at an appointed time, when again the appellant remained in the reception room while testatrix went into Mr. Powell's office and executed the will. Powell acted as one witness and a Mr. Galbreath, another attorney associated with him, acted as the other.
In support of the jury's findings, the respondent here points to the testimony of a number of witnesses. Giving their testimony full credence, as we are required to do, it may be summed up as follows: Testatrix was a highly emotional and very unstable person who would become upset on the slightest provocation; when thus upset she would 'disintegrate emotionally', would scream and yell, her eyes would often become glassy, she would weep uncontrollably and be beyond the reach of reason; she could have her mind diverted from whatever at the moment was bothering her by talking of something else; she was a person of very weak will, easily led and very susceptible to suggestions; she was almost completely dependent upon her husband and unable to manage for herself her own shopping and ordinary routine of life; in 1937 the testatrix had executed a will naming her husband as principal beneficiary, and in the event of his death before hers then making the residual beneficiaries the Sister Superior of the College of Notre Dame of Marysville, Marie Countryman and respondent Lenore De Armond; at the same time her husband had executed a will, naming his wife as principal beneficiary and respondent as the sole contingent beneficiary if his wife predeceased him; in 1946 the testatrix made a will, the contingent beneficiaries, if her husband predeceased her, being the same as in the 1937 will, save that Pauline Garewal was contingent beneficiary in place of Marie Countryman; testatrix had often stated that she considered appellant domineering and greedy, that she had gotten the best of a deal with Homer in reference to their mother's estate; that two weeks before his death testatrix had said she did not want appellant to come to her home because she was too domineering. Much the same picture of intermittent outbursts of hysteria and nervous makeup was given by several witnesses. It was shown that certain subjects particularly seemed to upset the testatrix, such as relatives, politics, Franco of Spain and Stalin of Russia and the stability of the economic system of the world and of the United States; many of her outbursts had to do with her husband's playing of the game of rummy, his health, and the doctors' responsibility therefor; when upset she would become extremely excited and abusive to anyone who didn't share her views; she had said that she hated all her own relatives and that the Tuckers consistently were trying to get the Lingenfelter money, conniving and scheming to that end; she declared that appellant wanted some of her furniture, but that she would burn it before she gave it to her. A Doctor Bone, who had treated testatrix as late as June 17, 1949, said she was an unwell person from the time he first knew her; was an advanced psychoneurotic and a border-line case between sanity and insanity in a medical sense; that she could be of unsound mind under the stress of excitement, anger or fear; that in the past she had been addicted to the use of narcotics and had once left him a hypodermic case. She had told him shortly before her death that she was going to ask her physician to have the Tuckers leave her home. She had had many surgical operations, one witness saying that her stomach was so scarified that a dime could not be placed between the scar tissues. She blamed the doctors for making a guinea pig out of her. She took medicine for her nervous condition, would cry at the least little thing and would go to pieces over nothing. She was extremely jealous of her husband and on one occasion went into a terrible tantrum and got a gun. Her husband left the apartment and stayed for several days at a hotel, during which period testatrix would phone the witness frequently asking if she knew how to take the safety off the gun. After four or five days she went to the witness' place of business and upon request gave up the gun. It took her weeks to get over the episode. Once she showed this same witness a rock she had placed in a sock for the purpose of hitting over the head some woman of whom she was suspicious. Her suspicions of her husband's infidelity were groundless. When in a tantrum she would talk 'awfully' without realizing what she said. She often spoke to intimate acquaintances concerning the testamentary provisions that she and her husband had made in their various wills, saying that they had their wills fixed just the way they wanted them. She expressed her dislike of appellant, screaming and yelling. A Doctor Kimmel, who had for a long time taken care of testatrix, while saying she was of sound mind, said she was psycho-neurotic to the extent she was barely able to manage her household and whenever anything unusual, such as illness, came along that demanded extra energy or demanded assuming more responsibility, then she couldn't cope with the situation and had to have help brought in. He said that during the stress of emotional upset and just following her husband's death he thought she was of unsound mind. Her brother had been committed to an institution for the insane as an insane person. A few days after her husband's death the testatrix shot herself and died from the effects of the wound, her death occurring July 1st, eight days after she had made her will. Shortly before her husband's death she had said that if her husband died she would kill herself, as there would be nothing left for her to live for, adding to the witness, respondent here, 'Homer and I have our wills and everything fixed just the way we want them and there is no reason for me to live. * * * I can't live without Homer because of my nervous condition.' Although appellant had visited the Lingenfelters occasionally during the years preceding the death of the testatrix, and she and Homer had corresponded, there is no evidence of constant association. It was shown that on several occasions during Homer's illnesses appellant came to their home at their request and helped out in the care of Homer and of the household while he was hospitalized. It was the testatrix herself who telegraphed appellant to come to them for that purpose. On June 14th appellant did so and remained until June 28th, leaving the day before testatrix shot herself. Respondent had for many years been the confidential legal secretary of Homer Lingenfelter and his various law partners and it appears that both he and his wife were very fond of her. If the contested will is not the will of testatrix then respondent takes under her preceding will.
Turning first to the appellant's contention that the evidence is insufficient to sustain the jury's finding that the will was the result of undue influence exercised by appellant we hold that this contention must be sustained. The evidence signally fails to measure up in any degree to the legal definitions of undue influence. Notwithstanding the testimony that the testatrix was a person of weak will and easily influenced, that the appellant was living with her when the will was made and accompanied her to the office of the attorney, where the will was drawn, that the will in her favor departs from a long-continued plan of testamentary disposition, as evidenced by previous wills and the many statements of the testatrix expressing antagonism toward appellant, nevertheless, the legal test considered, there is no proof of undue influence. First, there was no proof of confidential relationship, coupled with activity in the preparation of the will, which would support the jury's finding; and even if it be assumed that the jury might have found a confidential relationship, still there was no proof whatever of activity on the part of appellant. Respondent points to the fact of her dwelling with the testatrix during the period when it may be assumed the holographic document presented to Mr. Powell was prepared and written by the testatrix and to her having accompanied the testatrix to Mr. Powell's office when she went there for the purpose of making her will. But that is not the sort of activity with which we are concerned when the question of undue influence arises. As said in the Estate of Arnold, 16 Cal.2d 573, 581, 107 P.2d 25, 29:
'Conceding, simply for the purpose of argument, that a confidential relation was proved to have existed between Mrs. Logan and Arnold, proof of that fact alone did not cast the burden of proof upon her that the will was not obtained by her through undue influence. Estate of Purcell, 164 Cal. 300, 303, 128 P. 932. In that case it was held that proof of a confidential relationship did not bring into play a presumption of undue influence in the absence of evidence that the beneficiary suggested the terms of the will. In the Estate of Baird, 176 Cal. 381, 384, 168 P. 561, 563, we find the applicable rule stated in the following concise language: 'As suggested in the Estate of Higgins, 156 Cal. 261, 104 P. 8, a 'presumption of undue influence' arises from proof of the exercise of a confidential relation between the testator and such a beneficiary, 'coupled with activity on the part of the latter in the preparation of the will.' The confidential relation alone is not sufficient. There must be activity on the part of the beneficiary in the matter of the preparation of the will.'
'In an unbroken line of decisions of this court, the above statement of law has been approved.'
We think the foregoing disposes of any contention that the record here will sustain the jury's findings that the will in question was the product of the undue influence of the proponent. There was opportunity, to be sure, but there was no proof whatever of its exercise and on the contrary the circumstances attending the preparation and execution of the will itself, heretofore narrated, weigh heavily against any claim that at the time she executed her will she was under the influence of appellant. She was in the presence of her attorney and appellant was absent.
'In an action to set aside a will of a deceased person on the ground of undue influence, it is necessary to show that the influence was such as, in effect, to destroy the testator's free agency and substitute for his own another person's will. Estate of Motz, 136 Cal. 558, 563, 69 P. 294. Evidence must be produced that pressure was brought to bear directly upon the testamentary act. [Italics added.] In re McDevitt, 95 Cal. 17, 33, 30 P. 101. Mere general influence, however strong and controlling, not [brought] to bear upon the testamentary act, is not enough; it must be influence used directly to procure the will, and must amount to coercion destroying free agency on the part of the testator. Estate of Keegan, 139 Cal. 123, 127, 72 P. 828. It is further held that mere opportunity to influence the mind of the testator, even coupled with an interest or a motive to do so, is not sufficient. Estate of Easton, 140 Cal.App. 367, 371, 35 P.2d 614.' Estate of Arnold, supra, 16 Cal.2d 577, 107 P.2d 27.
The evidence here does not support the jury's finding of undue influence.
Turning now to the question of testamentary capacity, there is little, if any, disagreement between the parties as to the applicable law. Testamentary capacity is presumed to exist and the burden of proving its lack is upon the contestant. Estate of Arnold, supra; Estate of Schwartz, 67 Cal.App.2d 512, 519, 155 P.2d 76. It is settled beyond question that a person has testamentary capacity if he is able to understand the nature of the testamentary act, is able to recall and bear in mind the nature and extent of his property, and to remember those persons who have a claim upon his bounty. Estate of Arnold, supra. Further, such incapacity as is evidenced must be shown to have existed at the very time of the testamentary act.
'It is well settled that mere proof of mental derangement or even of insanity in a medical sense is not sufficient to invalidate a will, but the contestant is required to go further and prove either such a complete mental degeneration as denotes utter incapacity to know and understand those things which the law prescribes as essential to the making of a will, or the existence of a specific insane delusion which affected the making of the will in question. * * *
"In considering the evidence it is important, preliminarily, to observe that it is not every form of insanity, not every mental departure from the normal, which destroys an otherwise valid testamentary act. The rule of law is not that no person who is insane may make a valid will, but that the will of no person who, by reason of insanity, is incapable of making valid testamentary disposition shall be upheld.' Estate of Chevallier, 159 Cal. 161, 168, 113 P. 130, 133.
"Ability to transact important business, or even ordinary business, is not the legal standard of testamentary capacity, though it seems to be quite generally but mistakenly supposed, outside of the ranks of the legal profession, that a capacity to transact important business is the criterion of fitness to make a valid will. Says the Iowa Supreme Court (Perkins v. Perkins, 116 Iowa 253, 90 N.W. 55): 'While, as every lawyer knows, a man may be capable of making a good will after he is so far gone into imbecility and mental darkness as to be no longer capable of making a valid deed or of transacting business generally, the very opposite conclusion seems to pervade the lay mind, and the making of a will is, to its apprehension, the one item of business which requires the presence of all one's faculties in their normal strength." Estate of Sexton, 199 Cal. 759, 768, 251 P. 778.' Estate of Arnold, supra, 16 Cal.2d 585-586, 107 P.2d 32.
The parties do not dispute the validity of these rules, but confine their argument to the precise question as to whether or not such showing was made as would justify the jury in inferring that the testatrix did not at the time she executed her will have testamentary capacity within the scope of the foregoing definition of our highest courts. Appellant points out that the testimony of respondent's witnesses centers around a long series of emotional outbursts and calls attention to the testimony of several of respondent's witnesses that in between such outbursts they considered her to be of sound mind. Thus Mr. Powell, when testifying as a witness for respondent, gave it as his opinion that decedent was a person of strong will, not easily influenced, and of sound mind when she made her will, and he further said that she was a woman of unusual intelligence, well read, with positive views as to current affairs, particularly in the political field. Another of respondent's witnesses, giving it as her opinion that decedent was of unsound mind, and stressing the same emotional outbursts, said that she was not insane, though definitely unsound, that there were times when she didn't know what she was doing, but these times were when she was in one of these emotional disturbances or was in pain. In this connection appellant points to the testimony of Mr. Powell that during the considerable time she was engaged in discussing and in executing her will she was, according to him, calm and undisturbed. Another witness for respondent, as appellant points out, after describing emotional and unreasonable actions, said she did not mean that the decedent 'was insane or anything like that', but that she was very nervous and excitable, although also a very intelligent woman; that outside of these 'tirades' she could discuss matters like any other person, but it didn't take much to set her off; that except for these occasions she was very normal and acted normally. But all this creates conflict only. And coupled with these periodic, but frequent, emotional outbursts, when, if we accept what respondent's witnesses said, as we must, it could be said that reason fled from its throne, there was evidence that during the period immediately surrounding the making of this will she was subjected to the very stresses and strains which had always produced emotional upsets. Her husband's illnesses had always disturbed her and he was so gravely ill when the will was made and for sometime prior thereto that, according to Mr. Powell, while making the will and discussing its provisions, the testatrix and he had just about 'written poor Homer off'. She was threatening suicide if he died and was possessed of the gun with which she soon shot herself. She had declared that she had nothing to go on for and could not live without him and so strong was this compulsion to suicide that she carried out her declared intentions four days after his death, and within hours after appellant had left to return to her own home. During the time between her discussions with Mr. Powell she went down town, while the will was being typed, and the witness who talked to her then said that her conversation didn't make sense in anyway, that she was talking in circles, that her eyes looked glassy, and she believed her to be of unsound mind at that time. We hold that from the testimony, taken as a whole, the jury could infer that the testatrix did lack testamentary capacity at the very time she executed her will. We are aware that it may well be the picture which these witnesses drew of the condition of the testatrix was a distorted one. But it cannot be said that it does not furnish support for the jury's verdict. The jury had a right, if they chose, to reject conflicting evidence and to conclude that this woman, at the very time of the testamentary act, was so torn with emotion, grief and despair and so mentally disturbed as to render her incapable of making her will.
Appellants contend that the trial court erred prejudicially in the admission of statements reported by witnesses as having been made by Homer Lingenfelter touching his attitude toward his sister, one of the appellants, his feelings toward the contestant, and his own wills and testamentary intentions. All of this testimony was admitted over objection that it was incompetent and hearsay. One witness testified that he had heard Homer say the Tuckers were 'money minded', another that Homer had said appellant was domineering and completely mercenary and that he made such statements frequently, including the statement that between himself and his sister it was a case of 'dog eat dog'. Respondent was permitted to testify that she had often heard Homer say that his sister had 'hogged their father's estate'. One witness testified as to a conversation between herself and both the Lingenfelters, in which Homer stated that he was very bitter because of his sister's treatment of their mother, that she had killed his mother, that he hated her husband especially and would not allow him to benefit in any way, that Mr. Tucker was a low blank, blank, had influenced his sister, and that she in turn had done a lot of things against the Lingenfelters; that she was a money grabber and crazy over Mr. Tucker, that she tried to get everything she could and he for one was not going to have it and that they would never get a penny of his. Concerning Homer Lingenfelter's attitude toward respondent, one witness was permitted to testify that he said respondent had worked for him when he first came to Marysville, had helped him get started, had worked at a very small salary and deserved everything he could do to help her and that the testatrix felt the same way. Another witness said she heard Homer state that respondent had been very valuable to him, that she had never been paid enough for her services and that he and his wife had their wills fixed so that she would be taken care of, that she had her little boy to educate and would need more than she needed when she worked for him. Respondent testified that Homer had told her how he had missed her since she left his employ, how he had difficulty with her successors, that she had done a great deal for him and that he realized that over the years he had underpaid her. Concerning Homer's own testamentary plans, there was admitted into evidence a will under which he had made the respondent a principal beneficiary and witnesses were permitted to testify that he had said she deserved everything he could do to help her and that he and his wife had provided for her in their wills. Respondent was permitted to testify that she had been sole contingent beneficiary and ecutrix of a will which he had executed in the latter part of the thirties.
When this testimony was admitted, there was two ultimate issues; one whether when she made her will the testatrix had the mental capacity required under the law to make valid testamentary disposition of her property, and the other whether or not the appellant had unduly influenced her in the making of that disposition. Testimony as to declarations by a decedent with respect to such issues is admissible, although hearsay, not as proving or tending to prove the truth of the statements made, but as showing the state of mind of the decedent in so for as that is material to a determination of the issues. This was recognized by the trial court and the jury were so instructed as to evidence that had been received of declarations made by the testatrix. But the state of mind of Homer Lingenfelter was immaterial to the determination of any issue before the court or the jury. The evidence received was admittedly hearsay, could not be received for the purpose of proving the truth of the statements made and testified to, and, since Homer Lingenfelter's state of mind was immaterial, the evidence as a whole was inadmissible and ought not to have been admitted at all. As noted, one of the conversations in which Homer was reported as having made these declarations was participated in by the witness and by the testatrix. But the fact that the testatrix was present afforded no excuse for admitting the declarations of her husband; it was not necessary. If respondent wished to prove statements made by the testatrix in that conversation she could do so, but the fact that what the testatrix said was part of the conversation between herself, her husband and the witness gave no right to respondent to have the whole conversation reported by the witness. Of course, if, the testatrix' declarations having been testified to, the appellant desired the whole of the conversation, it would have been her right to introduce it, but it was not for the respondent to do so. The wills of Homer Lingenfelter also were immaterial and should not have been received. Their purpose was, of course, to show that he had made wills which favored respondent, but what he had done in that regard was not material in testing the testamentary capacity of the testatrix or the alleged undue influence of appellant. Homer's wills and the wills of the testatrix were not joint wills so that there existed any necessity of bringing in his testamentary acts because inextricably bound up with hers. Early in the trial this question of the admissibility of declarations and testamentary dispositions made by Homer Lingenfelter arose. Prompt and full objections were made and repeated many times. It was declared to be the intent of respondent to introduce this general line of testimony. Therefore, we have here no inadvertent admission of inadmissible testimony, but the erroneous admission of testimony over repeated objections in the carrying out of a plan of improper proof.
Respondent seeks to justify the admission of this hearsay testimony by saying that they had a right to prove declarations of the testatrix for the purpose of showing her state of mind, and that these spouses were so close that proof of the state of mind of Homer would be proof of the state of mind of his wife. The argument is unsound. It does not follow that because a husband thinks thus and so, even though he declares his thoughts in the presence of his wife, that she, therefore, and for that reason thinks the same. Close as the relations of husband and wife may be they are still two individuals and one is not the other. We note that there is no instruction by the trial court, as was given with respect to the declarations of the testatrix, that the declarations of Homer had been admitted solely for the purpose of proving his state of mind or of proving her state of mind. We think it clear from this record that the purpose of this testimony was to show to the jury that appellant was a greedy and mercenary woman, that she had robbed her brother in the past, that her husband was a man of little worth, that the two of them were schemers, intending to get the property of their relatives, that they were domineering, greedy and avaricious, and that, on the other hand, the respondent was deserving of a share in the Lingenfelter property, had in fact earned it by long years of faithful and underpaid labor, and that if, through some means, she did not acquire property from the Lingenfelters, she would in effect be cheated and defrauded.
Appellants contend that the trial court committed prejudicial error in admitting into evidence, over objection, a certified copy of a record of the probate court of Ada County, Idaho, from which it appeared that Earl F. Eby, a brother of testatrix, had on November 17, 1945, appeared before that court for examination on the charge of insanity; that testimony had been taken; that the court was satisfied that Earl F. Eby was insane and so far disordered in mind as to injure health, person or property; and that it had been adjudged that he be confined in the United States Veterans Hospital at American Lake, Washington.
When this record was offered appellants objected to its admission into evidence unless preliminary thereto, and as a condition thereof, it be shown that the insanity of testatrix' brother so adjudged was of an inheritable or transmissible type. The objection was overruled, the record was admitted and in its instructions to the jury the court told the jury, 'If it be established by the evidence that a brother of the testatrix is or was insane, then this is a circumstance which may be considered by you in determining whether or not she [testatrix] was of sound mind at the time of making the will.'
Before discussing the rule of evidence involved it should be noted that the record introduced clearly shows the Idaho court was neither concerned with the cause of insanity nor adjudged anything in relation thereto but was concerned solely with and only adjudicated the existing fact of the brother's insanity. Therefore, the record does not tend to prove that the insanity from which the brother suffered arose from any source that was transmissible to the testatrix. For all that the record shows, the brother's insanity may have been caused by any one of a great number of happenings peculiar to himself alone, such as trauma or disease.
We think that the objection ought to have been sustained and that this record was inadmissible without preliminary proof showing its relevancy, for unless there was something about the insanity of the brother which would afford an inference that from the same inheritable cause testatrix was either afflicted with a like insanity or predisposed thereto the record was not relevant to the issues being tried. This burden of preliminary proof to show relevancy was upon respondent for she could not introduce the bare record and cast upon appellant the burden of presenting proof of irrelevancy. That would be to assume relevancy without reason for the assumption.
The exact point here under discussion has not been squarely ruled upon by our appellate courts, so far as research of counsel or of this Court has served to disclose. The subject is treated by annotation to Commonwealth v. Dale, 264 Pa. 362, 107 A. 743, 6 A.L.R. 1482, under the heading, 'Necessity of showing that insanity of relatives was of a hereditary or transmissible type in order to render evidence thereof admissible.' It appears therefrom and from other discussions we have read that the appellate courts of other states are not in harmony upon this matter. Respondent refers us to People v. Smith, 31 Cal. 466, People v. Harris, 169 Cal. 53, 145 P. 520; Estate of Lenci, 106 Cal.App. 171, 288 P. 841; Estate of Dolbeer, 149 Cal. 227, 86 P. 695, and In re Redfield, 116 Cal. 637, 48 P. 794. But those cases do not pass upon the precise question here presented. They go along the line that where there is direct testimony tending to prove that the person in question is insane, evidence as to insanity of his blood relatives is admissible in corroboration of such direct testimony, but they do not expressly hold, and we do not think they necessarily mean, that it is unnecessary to show that the insanity was hereditary or transmissible. In accordance with this Court's holding are such cases as Riechenbach v. Ruddach, 127 Pa. 564, 18 A. 432; Re Myer's Will, 184 N.Y. 54, 76 N.E. 920; People v. Kohlmeyer, 284 N.Y. 366, 31 N.E.2d 490; State v. Van Tassel, 103 Iowa 6, 72 N.W. 497, and Hawley v. Griffin, Iowa, 82 N.W. 905.
We have hereinbefore held that the evidence in this record was sufficient to support the jury's finding in respect of the testamentary capacity of the testatrix. We think it apparent from a recital of that testimony that the support so afforded is meager and barely sufficient for that purpose. This being so, we hold that the errors in admitting the hearsay testimony concerning the declarations of Homer Lingenfelter, the introduction in evidence of his previous testamentary dispositions, and the admission of the insanity record of testatrix' brother were prejudicial to a degree that requires reversal.
The judgment appealed from is reversed. That part of the order denying proponent's motion for judgment notwithstanding the verdict as to the issue of undue influence is reversed. The cause is remanded to the trial court for a retrial of the issue of testamentary capacity. As to the issue of undue influence the trial court is directed to grant the motion for judgment thereon notwithstanding the verdict and to enter appropriate orders to that effect.
ADAMS, P. J., and PEEK, J., concur. --------------- * Subsequent opinion 241 P.2d 990.